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Originally Published: 11/28/2007

RIGHT OF PRIVACY

By The Issue Wonk

 

People talk about the right of privacy all the time, but there is no expressed right of privacy stated in the Constitution.  However, it is widely accepted that a broad right of privacy is inferred.  In 1890, Supreme Court Justice Louis Brandeis “extolled a ‘right to be left alone.’”1  And a privacy right has been the basis of many Supreme Court decisions, such as Roe v. Wade.2

 

What one needs to remember is that the Constitution isn’t about what the people can do, it’s about what the government can do.  It spells out the powers given to the federal government and makes it clear that any powers not specifically granted do not exist.  The Bill of Rights, which the original framers didn’t believe was necessary and which became a condition for many states’ ratification of the Constitution, was meant to spell out what the government can’t do. 

 

The argument for the right of privacy is that the Bill of Rights reflects a concern for protecting rights which are aspects of privacy:  the 1st Amendment, the privacy of beliefs; the 3rd Amendment, the privacy of the home against demands that it be used to house soldiers; the 4th Amendment, the privacy of the person and possessions against unreasonable searches; the 5th Amendment, the privacy of personal information.  And, just to make sure they got them all, the 9th and 10th Amendments were added:

 

9th Amendment:  The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

 

10th Amendment:  The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

 

Later, the 14th Amendment was added to protect personal autonomy.  Known as the "Due Process Clause," subsection (1) of the 14th Amendment states:

 

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Emphasis added.] [Please note that this last clause applies to persons “within its jurisdiction,” not just U.S. citizens.]

 

The right of privacy has been widely accepted to apply to areas of personal autonomy:

 

The right of privacy has evolved to protect the freedom of individuals to choose whether or not to perform certain acts or subject themselves to certain experiences.  This personal autonomy has grown into a “liberty” protected by the Due Process Clause of the 14th Amendment.  However, this liberty is narrowly defined, and generally only protects privacy of family, marriage, motherhood, procreation, and child rearing.  Further extensions of this right of privacy have been attempted under the 1st, 4th, and 5th Amendments to the U.S. Constitution, however a general right to personal autonomy has yet to take hold beyond limited circumstances.1

 

This “evolution” has come through various federal judicial decisions, such as Griswold v. Connecticut, 381 U.S. 479 (1965), Roe v. Wade, 410 U.S. 113 (1973), Bowers v. Hardwick, 478 U.S. 186 (1986) [overturned by Lawrence v. Texas, 539 U.S. 558 (2003)], Stanley v. Georgia, 394 U.S. 557 (1969), and Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).

 

Justice Anthony Kennedy, writing the Majority Opinion for Lawrence, said:  “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.”

 

In addition to Supreme Court decisions, the right of privacy has been acknowledged to be so important that many laws have been passed safeguarding it:

 

The right of privacy has evolved to protect the ability of individuals to determine what sort of information about themselves is collected, and how that information is used.1

 

15 U.S.C. § 45 charges the Federal Trade Commission (FTC) with enforcing privacy promises made in the marketplace.

 

The Privacy Act of 1974 (5 U.S.C. § 552a) protects personal information held by the federal government by preventing unauthorized disclosures of such information.

 

The Gramm-Leach Bliley Act, or the Financial Modernization Act of 1999, establishes guidelines for the protection of personal financial information.  Financial institutions are required by law (15 U.S.C. § 6803) to provide a privacy policy to customers which explains the kinds of information collected and how that information is used.

 

The Fair Credit Report Act (15 U.S.C. § 1681 et seq.) protects personal financial information collected by consumer reporting agencies.

 

The Children’s Online Privacy Protection Act (15 U.S.C. §§ 6501-6506) allows parents to control what information is collected online about their children younger than 13 years old.

 

There are also several laws protecting what is known as the right of publicity:

 

The Right of Publicity prevents the unauthorized commercial use of an individual’s name, likeness, or other recognizable aspects of one’s persona.  It gives an individual the exclusive right to license the use of their identity for commercial promotion. . . The Right of Publicity is largely protected by state common or statutory law.  Only about half the states have distinctly recognized a Right of Publicity.  Of these, many do not recognize a right by that name but protect it as a part of the Right of Privacy.1

 

In spite of all the above, some still argue that the right to privacy doesn’t exist.  Judge Robert Bork, in his Supreme Court confirmation hearings, argued that no such general right exists. (See Wikipedia)  However, as a Supreme Court nominee this appeared a little strange since, throughout the years, the Supreme Court has taken a different view:

 

The Supreme Court, however, beginning as early as 1923 and continuing through its recent decisions, has broadly read the “liberty” guarantee of the Fourteenth Amendment to guarantee a fairly broad right of privacy that has come to encompass decisions about child rearing, procreation, marriage, and termination of medical treatment.  Polls show most Americans support this broader reading of the Constitution.3

 

The only exception to an absolute right of privacy is in the balancing of such right against the government’s compelling interests.  “Such compelling interests include the promotion of public morality, protection of the individual’s psychological health, and improving the quality of life.”1

 

In the past the Supreme Court has ruled that states must demonstrate a “compelling interest” in order to “overcome claims by individuals that they have invaded a protected liberty interest.”3  Since the right of privacy is expected by U.S. citizens, it seems highly unlikely that this right will be taken away by future Supreme Court decisions.  However, the fear of it being “whittled” away, particular with regard to reproductive rights, is very real.  Yet, the right of privacy, as it applies to information now easily collected by governments and organizations and easily placed on the Internet, is expected to be expanded as time goes on.  Currently, the biggest threat to our right of privacy is recent legislation meant to safeguard U.S. citizens from harm by “terrorists.”

 

_______________

 

1   Right of Privacy:  An Overview.  Cornell University Law School, Legal Information Institute.

 

2  Roe v. Wade Decision, Touro Law Center.

 

3  The Right of Privacy.  Exploring Constitutional Conflicts.  University of Missouri - Kansas City.

 

 

© The Issue Wonk, 2007

 

 

 

 

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